The “stroke of a pen” is not QUITE a fallacy

Obama could in fact repeal Don’t Ask Don’t Tell in many (although not all) circumstances.

Mark is surely right to point out that Don’t Ask Don’t Tell is the law, and thus more complex than when Harry Truman desegregated the military.

But I disagree with his legal analysis.  Given the massive shortage of trained linguists in the military, and the primacy that we are now placing on better intelligence work, keeping our dwindling (and never particularly large) cadre of fluent Arab speakers who already have security clearance is indeed “essential to the national security of the United States.”

This is why the “stroke of a pen” is not quite a fallacy; the President would violate the law were he to resist dismissal of a servicemember who lacked special skills — but in the case of intelligence work, this does not seem to me to be a difficult call.

So Mark: you’re on.  $100 says that DADT is still the law on Election Day 2010.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

2 thoughts on “The “stroke of a pen” is not QUITE a fallacy”

  1. You should give Mark the lame-duck sessions as well–the Democrats are more likely to pass a bill after they've lost their majority.

  2. I think you are too generous to Mark. Stop loss authority has been upheld for every member of any unit that is activated during an emergency. Courts have made no effort to question the executive branch's determination that an individual was "essential to the national security of the United States" in those cases – which are based on the same statutory provision. The US has forced many individuals to remain on active duty regardless of their skill set, and the decisions are not made on an individual basis. Mark seems to be reading this statute without reference to existing practice regarding this provision or to court cases which have interpreted this provision in the context of stop loss. Surely a reasonable interpretation of the law would take account of both of those things.

    I wouldn't take the bet one way or the other, but unless this provision must be interpreted by special rules when it involves DADT, I simply don't understand how anyone can claim that individualized determinations with such a high bar are necessary for ending DADT but not to engage in stop loss.

Comments are closed.